William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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1831, to $142,663. In 1796, the legislature of Virginia made
provision for the establishment and support of elementary schools
for all children, rich and poor, and a similar plan was adopted
hy the legislature in 1816, and the system was enlarged in 1820,
hot it was not a compulsory system, though it was said by a coih-
petent judge to be, in 1886, in a course of experiment that prom-
ised Buocees (d). In South Carolina there were, in 1829, 513
bee schools, and $87,000 appropriated to them (e). In the States

(a) Whartok'a TH^coune heftrre the Alwnniof the University of Penna,^ 18:i6,

(6) See in Furdon*8 Digeslj 289 — ^300, the various statute provisions in Penn-
sylvania for the seneral system of common schools and for the common
Kfaool fundf and for the education of the poor.

(c) StaluU Lam of Ohio, 1829, 1838.

yd) Dr, Tucker, in his Life of Jefferson, vol. i.

(e) American Juriai, No. 4, p. 391, 393. Jefereon'a WritingB, voL i. 39.
Ameriean Jurist, No. 11.

** Article 10, { 1, Constitution of 1874, provides for the maintenance and
sapport of public schools and appropriates at least 11,000,000 a year therefor.


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of Indiana, Illinois, Missouri, Kentucky, Tennessee, Misi
dl] sippi, Louisiana, Georgia, and Alabama, there are ♦fui

either provided, or in preparation, for common Bchools, a
the organization and government of them in every local distri
Georgia, by statute in 1821, half a million of dollars was app
ited as a school fund, one-half for the support of free scho<
the other half to endow county academies. In 1836, oi
d of the surplus fund derived from the United States, \
ed to the school fund, and a committee was appointed by i
slature to digest and report a plan of common school edu
i, adapted to the people of the state. The former system 1
Q extremely imperfect and miserably executed (a). In Ki
ey, the system was understood to be prosperous, and in 18
re were upwards of 30,0(X> children tanght in the comu
3ols, and in 1889, the annual income of the school fund \
,000. The constitution of Tennessee, in 1835, declared tl
common school fund, and all property appropriated for t]
Bct, should be a perpetual fund, never to be diverted to f
dT use than the support and encouragement of common 8cbo<
the constitution of Michigan of 1835, enforced the duty wh
been partly anticipated by the statute of April 18, 1833, p
ng for the laying out school districts in each town, and i
^ssment of taxes for the erection of school-houses. But '
was no further compulsory, and yet we may look for e£Fect
port and success to the cause of popular education in tl
e; for the university of Michigan is said, by the learned e
rant historian of that state (6), to be founded on a wi<
,e, and with a more liberal endowment, than any other
i side of the Atlantic.

In Indiana, a very provisional act, relative to schooh
98] the congressional townships, was passed in 1838, and *!

acts of 1832 and 1835,contained provisions for theenconrj
it of common schools and county seminaries (c). The oapi
he school fund was stated to be in 1839, two million of dolle
Mississippi, by a series of statutes, common schools in e€
n of the state are directed to be established by the trustees

) Prince'^ Dig. 2d edit. p. 19, 26, 27, 29.

) Hidory of Michigan by James H. Lanman, 1839, p. 247.

) Revised Statutes of Indiana, 183a, p. 509, 546, 547, 568.



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Ihnds, reserved in each township, and the trustees are
by the resident heads of families in each township (a),
d this brief and imperfect review of some of the most im-
\ state institutions on the subject, it would appear that the
}hment of permanent school funds, and the zealous and
t support of common schools, was an increasing and fa-
policy throughout the United States, and special pro-
for the education of common teachers was a matter of
[ interest and attention (6).

> laws of New York, on this subject, require a more [*199]
lar consideration. They were formerly exceedingly
it, and there was no legal provision for the establishment of
ihools, for the common education of children, except the

im of dfissimippi, edit. 1839, by Alden & Vanhoesen, p. 376-381.
le best summary that I have seen of the public provision made for
)ort of common s(;hools in the United States, and the one most full
Is of the existing system in each state, as it existed in 1834, is to be
rhere we should not naturally have expected to have found it — in
mdix to Mr. Crawford *8 Report on the PeniieniarieH of the United States^
"d in London, by onier of government, during the year 1835. His
ns upon the value and defects of the system in each state are fiee
icious. A bill for the general education of the poor, by the estab-
t of common schools, was introduced into the British parliament, in
' Mr. Brougham, and it appeared, from the estimates made in the
f commons, that a large proportion of the children of England, re-
common education, were without ita benefits. The bill was not
x)n, though supported with his customary zeal and ability by that
lished statesman. (AnnucU Register^ for 1820, part 1. p. 49^5fj!!) In
was estimated that there was not leas thau a million and a half of
(Iren of the humbler classes in England receiving instruction from
owed and the unendowed schools, and the Sunday schools. In 1833,
iness of popular education was taken up in the British parliament,
XK)/. voted in aid of it for the erection of school-houses : and no aid
)e afforded, till one-half of the estimated expense was raised by pri-
itribution. It was found that private liberality outstripped tliat of
ent, and 98 new school-houses were erected within a year. In May,
^>rd Brougham pressed again upon parliament the necessity of fur-
i more adequate provision for common schools, and he considered
5 means of elementary instruction wer^ greatly deficient. He intro-
•esolutions, declaring that seminaries, where good schoolma.ster8
le trained, ought to be established, and infant schools ought to be
ged ; yet not so as to relax the efforts of private beneficence, or to
ige the poorer classes of the people from contributing to the costs ol
Qg their own children. The introduction and prosperous establisli-
' common schools, by the Christian missionaries, in the South Sea
and especially in the Sandwich Islands, within the last few years,
deeply interesting. The rapid transformation of the natives oi
lands, from being savages and heathens in 1820, to very considcra-
ensions in 1830, to the character of a civilized and Christian people,
remarkable, and reflects honour, not only on the mild and teachable
ion of the natives, but also on the diligence, discretion, fidelity, and
ith which the missionaries have devoted themselves, to fulfil the
8 01 their trust



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r nnimportani authority given to the overseers of the poor, \
jnstices, to bind out poor children as apprentices, accord
heir degree and ability, and the obligation imposed u]
T masters to learn them to read and write. But since
r 1795, a more liberal and enlightened spirit has adorned
lestic annals, and from that era we date the commenoen
i great and spirited effort on the part of government, to
rage common schools throughout the state. The annual t
)0,000 dollars was appropriated for five years, and distribc
ally among the several towns, for the establishment and
ragement of schools, for teaching children the most U8<
[ necessary branches of a good English education. A i
a\ to one-half of the sum granted by the state to each to
I directed to be raised by each town during the si
iod, for an additional aid to the schools (a). In 1(
>ermanent fund for the support of common schools
b provided (&), and it was enlarged by subsequent leg
ve appropriations (c). And increasing anxiety for

growth, security, and application of the fund, an<
200 ] deep sense of its * value and importance, were c

stantly felt In 1811, the legislature (d) took m<
5 for the preparation and digest of a system for the organ
\ and establishment of common schools, and the distribni
he interest of the school fund. In 1812 (e), the present i
L was established, under the direction of an officer knowi
superintendent of common schools. The interest of
ool fund was directed to be annually distributed among
aral towns, in a ratio to their population, provided the to
uld raise a sum equal to their proportion, by a tax n
mselves. Each town was directed to be divided into scl
ixicts, and town commissioners and school inspectors were
bed to be chosen, and the children who had access to tl
ools were to be between the ages of five and fifteen years,
rhis system thus established, has prospered to a surpris
;ree. In 1821, the fund distributed was $80,000, in addii

r) Act of 9th April, 1795, ch. 75, entitled ''An act for the Enoooi

It of Schools."

i) Act of April 2d, 1805, ch. 66.

) Act of March 13th, 1807, ch. 32.

Act of April 9th, 1811, ch. 246, aec. 54.

i) Act of June 19th, 1812, ch. 242.



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ike sum, which was raised by taxation, in the several school
sis, and applied in the same way, and the secretary of state
eclared to be ex officio superintendent of common schools.
E23, there were 7382 school districts, and conseqneotly as
common schools ; and upwards of 400,000 children, pr
than one-foarth of the entire population of the state, were
icted in these common schools. The sam of 1182,000, and
rds, was expended in that year, from the permanent school
and the moneys raised by town taxes, for that purpose, in
ipport of common schools. The general and local fund, ac-
ig to the report of the superintendent of common schools,
) 8th January, 1824, amounted to 11,637,000 ; and it has
been in a course of steady, progressive enlargement
iording to the annual report of the superintendent of corn-
schools, made in January, 1831, there were in the state
district schools, in which were taught, during the year
499,429 children, between five and sixteen years
re; and the general average of instruction was for [ * 201 ]
eriod of eight months. The sum appropriated
g the common schools, in the year of 1830, was $239,713, of
i $100.0(K) was derived from the state treasury, and the res-
was raised from taxes upon the towns, and from local funds,
nstruction is probably very scanty in many of the schools,
the want of school books and good teachers; but the ele-
i of knowledge are taught, and the foundations of learning
id (a). The school fund is solid and durable; and it is

On the Ist of January, 1835, there were 10,132 school districts in the
and 541 ,401 children, between the agea of live and sixteen, were tanjyrht,
4, in the common schools. The sum of f 73-^,059 (with the exception
w thousand dollars expended in the city of New York upon school-
0, was paid, in 1834, to teachers for their wages; and of that sum $312,-
asdistributed to the common schools from public funds, and the residue
mtributed by the inhabitants. The surplus revenue of the literature
s directed by law to be distributed by the regents of the university
I the incorporated academies under their care (of which there were, in
67, with 5506 students), for the education of common school teachers.
» computed that $3000 would be annually applied for that object. The
.1 of the common school Aind was, in 1839, $1,978,069, yielding a revenue
2,472. The capital of the literature fund was, in 1839, $268, 164, yield-
revenue of $48,109, and placed at the disposal of the regents of the un-
ky, to pay tutors in the academies and for instructing teachers of com-

is computed that the state emplojrs annually 10,000 common school
;rs; and the legislature, in 1835, made provision to facilitate the edu-
i of common school teachers, in the establishment of school district
ies, and furnishing each school with the report of the regent;3 of the

18 vol.. II. KENT. 273


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onder the guaranty of the oonstitation, which declaree I
the proceeds of all lands belonging to this state, exc
arts thereof as may be reserved or appropriated to pnl
lich shall thereafter be sold Or disposed of, together ¥
id denominated the common school fand, shall be and
perpetual fond, the interest of which shall be inviola
^riated and applied to the support of common scho
hont this state."

ity, on the education of the teachers. Laws of New York, 1835,
[•h. 80.

38 great improvements were made by New York in the enlargeu
siency of the system of popular education. The governor in his
»sage to the legislature recommended the subject to their consid
a forcible and enlightened manner; and the report of a commi
ouse of assembly contained a liberal and comprehensive plan of
ent, which was carried essentially into efifect by the act of April 1
1. 237. It directed that the share oi the state in the surplus rev<
Jnited States, nnder the act of Confn'ess of June 23d, 1836, be wh
to the purposes of education. $llu,006 thereof was to be anno
[ted to the support of common schools, but upon the condition t
le the general school districts to their share of the common so
ad of the surplus fund coming fVom the United States, each sc
was to maintain a school taught by a qualified teacher for four ma
year. The further sum of $55,000 was to be appropriated h;
\ of the school districts for three years (and which was enlargec
of 1839, ch. 177, to five years) for the purchase of a district libr
er that time, either for a library, or for the payment of teacl
n the discretion of the school districts. $5000 were also appropri
years, and until otherwise directed by law, to Geneva College;
) sum for the like period to the University in New York, for the
r professors and teachers; aqd $3000 fbr the like period and pur
ilton Ck>llege; and the fbrther sum of $28,000 of the like surplu
;rature flind, and which, with the $12,000 of the then exi^
re fund, was directed to be annually distributed by the reg
the academies and incorporated schools subject to their visital
latter grant was upon the condition that a suitable building f*ir <
y was erected and furnished, and a suitable library and philosnpl
us furnished and a proper preceptor employed, and the whole t
ralue of at least $2500; and it was fhrther provided, that every a
receiving a sum equal to $700 a year, should maintain a departi
instruction of common school teachers. The residue of the inc
be annually added to the capital of the common school fbnd and (
1. In 1839 further provision was made that whenever the 8up<
\xiy county should omit in any year to raise by tax a sum equi
portioned to the towns of the county under the common school sys
superintendent of common schools, the school monies appropri
i county should be withheld, or so much of that proportion as
should not raise. The superintendent was to appoint visitors foi
3 schools of the counties, and at the request of the trustees to »
ary, and provision was made for the use and preservation of the b
)1 district libraries. Acts of April 15th, 1839, ch. 177, and Maj
I. 330. These wise and enlightened provisions do great honour t<
onal policy of New Yoik. In 1839 more than 100,000 volumes of
bs were disseminated through the 10,000 school districts in New \
rt. 7, sec. 10.



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:rx.] or thb rights of persons.

L proTisions for the Dniveraal difPasion of (
traction, may be oontemplated with pri
ations. Bat the splendid provision whic!
8 of the states, and especially in Conn
or the support of common schools, onghi
of parents and gnardians, and of the con
orage and sustain a more thorough anc
cation. They ought not to remain^ coc
the state fund affords, of instruction, witl
t expense. The true province of a schoc
)de, but to encourage and stimulate the
\ and town authorities, in sustaining ant
of common school education. Individn
I with the public authorities, and a wise i
) cannot cease to patronize and endow ac
nd render the elements of science, and the
Ation accessible in every state. Without
L amongst us, of men of superior ^educati
ch, the teachers of common schools, we
that the great duties appertaining to p
le to be discharged, with the requisite i
by. It is not common schools alone (for
. be confined to very humble teaching) ;
, academies and colleges, that must edu<
I men, who are fit to lead the pdblic col
with the guardianship of our laws and li
vate the character of the nation (a),
remaining branch of parental duty, ooi
;ent provision, according to the condition a
father, for the future welfare and settlem
A duty is not susceptible of municipal re
idly left to the dictates of reason and i
ws have not interfered on this point, an
» dispose of his property as he pleases; an
cretion, the path his children ought to pui
lend law allow, that parents may dispose

resident Humphrey justly remarks that it was a f
inecticut school fund of two million of dollars w
[lemies were not brought in for a share of the incc
provision in the school laws of New York, whicl
r the university to help the academies of that sta


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as they please, after providing for the neceesary main-
[ * 203 ] tenanoe of their infant ^children, and those adults, who

are not of ability to provide for themselves (a). A
father may, at his death, devise all his estate to strangers, and
leave his children upon the parish, and the public can have no
remedy by way of indemnity against the executor. " I am sur-
prised,'' said Lord Alvanley (6), ''that this should be the law of
any country, but I am afraid it is the law of England."

JLOfthe rights of parents.

The rights of parents result from their duties. Aa they are
boand to maintain and educate their children, the law has given
them a right to such authority; and in the support of that an-
thority, a right to the exerdse of such discipline as may be requi-
site for the discharge of their sacred trust This is the tme
foundation of parental power; and yet the ancients generally
carried the power of the parent to a most atrocious extent over
the person and liberty of the child. '^ The Persians, E^gyptians,
Oreeks, Gauls, and Romans, allowed to fathers a very absolute
dominion over their offspring; but the Romans, according to
Justinian, exceeded all other people, and the liberty and lives of
the children were placed within the power of the
[*204] father (c). It was not, however, an absolute ^license
of power among the Romans, to be executed in a wanton
and arbitrary manner. It was a regular domestic jurisdiction,

(a) Puff, Droit de la Nature, lib. 4, ch. 11, sec 7.

(b) 5 Fesey, 444. See infray p. 327, and vol. iv. p. 502, 503, as to the prori-
sion made by the laws of ancient Athens and Some, for children,' oat of tbe
estates of their parents.

(o) iMt. 1, 9. De Fairia FoteOate, Law of the Twdve Tables. See vol. i.
p. 524, note. Taylor* s ElemenU of the Cwil Lame, p. 305, 397, 402. Voffoge dm
Anacharna en Qreece^ tome iii. ch. 26. Ctuar de Bel, Oal. lib. vi. ch. 18. In-
fanticide was the horrible and stnbbom vice of almost all antiquity. CHb-
hon^s History, vol. viii. p. 55 — 57. Noodt de Partus Ea^Mmitione et Nece apmd
veterea ; and which is considered to he a singalar work of great aocnracy on
this subject. Sallust mentions the extreme exercise of the paternal power
at Rome, as a thing of course, and without any ohservation. In his erai
Fulvius Senatoris filiua, retractum ex itinere parens neeari JmssiL Sai. Bel, Oat
ch. 39.

^^ In ordinary cases, upon habeas corpus, where the child has arrived at
years of discretion, the court will permit it to elect in whose custody it will
be placed, taking care however that such election is not improper, and if the
child is incompetent the court will, after examination, exercise its discretion.
Foster v. Aston, 6 How. Mirs. 406; Commonwealth v, Addicks, 5 Bin. PS.
520; People r. Mercein, 3 Hill, N. Y. 399; People v. Wilson, 22 Barb. 178;
Wilcox ». Wilcox, 14 N. Y. 575.



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though in many instances, this paternal power was exercised
withont the forms of justice. The power of the father over the
life of the child, was weakened greatly in pnblic opinion by the
time of Angnstos, under the silent operation of refined manners and
ooltivated morals. It was looked npon as obsolete, when the
pandectR were compiled (a). Bynkershoeck was of opinion, that
the power ceased under the Emperor Hadrian. The Emperor
Oonstantine made the crime capital as to adult children. In the
age of Tacitus, the exposing of infants was unlawful, but merely
holding it to be unlawful, was not sufficient (6). When the crime
of exposing and killing infants was made capital, under Yalen-
tinian and Valens, then the practice was finally exterminated (c),
and the paternal power reduced to the standard of reason, and of
our own municipal law, which admits only the jua domesticoe emen-
datiorUSy or right of inflicting moderate correction, under
the exercise of a sound discretion (d). In every *thing [ * 205 ]
that related to the domestic connections, the English
eommon law has an undoubted superiority over the Roman.
Under ^he latter, the paternal power continued during the son's
life, and did not cease even on his arriving at the greatest
hononra The. son could not sue without his father's consent, or
marry without his consent ; and whatever he acquired, he ac-
quired for the father's advantage; and in respect to the father,
the son was considered rather in the light of property, than as a
rational being. Such a code of law was barbarous and unfit for
a free and civilized people; and Justinian himself pronounced it
inhuman, and mitigated its rigour so far as to secure to the son
the property he acquired by any other means than by his father;

{a) Lteeat eoB exheredare, quoa oceid^e Ucebal. Dig. 28, 2, 11.

(6) Nwmerum liberwrum finire, out guemquam ex agnails nerare, flagifium
habetnr, phugue ibi b(mi mores valent, quam aiibi bofue leges. Tac. de Mor.
Otr. ch. 19.

(c) Dr. Taylor, in his Elements of the Civil Law, p. 40^—406, gives a concise
histofy of tfa4% progress of the Roman jarisprndence, in its efibrts to destroy
this monstrous power of the parent; but Bynkershoeck has*oompo9ed a regular
treatise, with infinite learning, on this subject It is entitled, Opusnilum
dejure oeeidendi, vendendi, el exponendi liberos apud veteres Romanos. Opera,
tome i. p. 346; and it led him into some controversy with his predecessor,
the learned Noodi, on the doobtftil points and recondite learning, attached
to that dtaenasion. Heineccitis, in his Syntagma AnUq. Bom. Jur. lib. i. tit. 9.
Opara, tome iv., has also given the history of the Roman jurisprudence, from
Romulos to Jastinian, relative to this tremendous power of the father, and
which, he says, was justly termed, by the Roman authors, patria majestat.

id) 1 Hawk. P. a b. i. ch. 60, sec 23.



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and yet even as to all acqtdsitions of the son, the father was still
entitled to the nse (a).

The father, and on his death, the mother, is generally entitled
to the custody of the infant children, inasmuch as they are their
nataral protectors, for maintenance and education (6). But the
courts of justice may, in their sound discretion, and when the
murals, or safety, or interests of the children strongly require it,
withdraw the infants from the custody of the father or mother,
and place the care and custody o^'them elsewhere (c). So the
power allowed by law to the parent over the person of the child,
may be delegated to a tutor or instructor, the better to accomplish
the purposes of education (d). The father, and in certain cases,
the mother, had, at common law, as guardian in socage, a right
to the custody of the estate of the heir during his minority, and
to take the rents and profits thereof, as will be more fully shown

in the next lecture; and generally in this country, the
[ ♦ 206 ] father may, by deed or will, ♦dispose, after his death, of

the custody and tuition of his children, under age. This
power was originally given by the English statute of 12 Charles
IL c. 24; and the person so invested, may take the care and man-
agement of the estate, real and personal, belonging to the infants;

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 34 of 108)